Wednesday, March 16, 2005

"Will of the People"

Last serious post for a while, I promise. But in the Activist Judges post comments, somebody asks whether the judiciary shouldn't bow to the will of the people if the will is, to paraphrase "overwhelming." At what point is a judge who decides against the majority wishes of the populace in some manner, to whit, subverting democracy?

First off, the problem is people use "democracy" as a catch-all phrase for the set of legal protections we have in place in America as opposed to its correct definition. Again, read Zakaria, then come back.

Second, and I cannot make this more plain -- that's not subverting the way the US is supposed to work, that's the way the Founding Fathers DESIGNED the US to work. Quite frankly, when you're pissed off at at least one of the branches of government, the US is working according to plan.

Hmm. An example to pull us out of the land of airy-fairy theory and into practical application:

As of this month, going by the latest Quinnipac and CBS polls, recognition of SOME sort of legal agreement between gays comes in around 45-50% now -- using the word "marriage" changes the numbers considerably, showing again the power of semantics. More tellingly, support for a Constitutional Amendment banning even marriage (the hot button word getting the biggest negative response) barely clears 40% in most polls. What does this indicate? What opposition there is, it's not as deep as it is broad. So, while one can argue either side of the issue, it's not so far out in the land of bizarre-o that the courts are breaking basic social construct by tackling the issue.

However ...

... when the Supreme Court struck down the bans against interracial marriage in 1968 through Virginia vs. Loving, SEVENTY-TWO PERCENT of Americans were against interracial marriage. As a matter of fact, approval of interracial marriage in the US didn't cross the positive threshold until -- sweet God -- 1991

55 comments:

Frito
said...

Well, as one of those backwards law students you hear about on the news, the entire concept of an activist judge is crap. All judges are activist in the sense that they will ignore precident and aim for a higher Constitutionally based law. The problem is that you have judges that claim to be judical restainists. Judges like old "Fat Tony" Scalia, think that the Constitution bans gay marraige and allows for the sale of automatic weapons to felons and that Ginsburg is crazy for thinking that there is a seperation between church and state.

The balance of power through judicial review has been around since Marbury v. Madison, which luckly has never been overturned by the court. The court is in a lot of ways the most honest of all the branches, it takes the powers it needs to keep everyone else honest and leaves enough that it can be challanges by the other branches. It has also taken up the protection of the minority rights against a system that would crush them under the banner of majority rule.

Also, I thought the whole point of having Judges was that they represent the wise and learned group of elders who are supposed to be SMARTER than the average people. To put it in simple terms, Judges are supposed to exercise their - informed, experienced, and educated - opinions in order to RESOLVE disputes among the people. They look at issues that divide people and they are supposed to be the ones who consider ALL sides and, after careful consideration and deliberation, settle the matter through a decisive ruling. They can't make all the people happy, nor should they. They are SUPPOSED to be above the people, because they're supposed to represent the rule of law, not the people. That's what our elected representives are there for - to represent the people. If the people were always right all of the time, we wouldn't need judges in the first place...